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Community perspectives in investor-state arbitration

Lorenzo Cotula, Mika Schröeder

Book/Report, 60 pages

The governance of the global economy has been at the centre of extensive and often polarised debates. International arbitrations to settle investment disputes between businesses and states – a system commonly referred to as ‘investor-state arbitration’ – have come to crystallise wider concerns about the balance of public and corporate interests in economic governance.

Although these proceedings pit an investor against a state, the underlying dispute often also involves communities affected by, but not party to, the arbitration. Issues that have surfaced in such cases include concerns about communities’ enjoyment of human rights, their access to land and natural resources, exposure to environmental harm and public authorities’ responsiveness to community demands.

This report examines whether and how investor-state arbitral tribunals consider community perspectives, interests and rights in their settlement of investment disputes. Based on information from online global databases, it identifies 20 arbitrations where some form of community action was part of the facts of the case and was reflected – albeit partially and cursorily – in publicly available case documents. The analysis highlights the need to rethink arrangements for settling investment-related disputes.

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Cotula L and Schröder M (2017) Community perspectives in investor-state arbitration. IIED, London.
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International treaties, national laws and transnational contracts define the terms of an investment and influence the distribution of its costs and benefits. To promote inclusive sustainable development, IIED works with partners to rethink these legal documents and the process through which they are formulated.

More at www.iied.org:
Rethinking investment treaties, laws and contracts